v. Sims ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 7, 2020
2020COA78
No. 18CA0528, People v. Sims — Crimes — Eluding or
Attempting to Elude a Police Officer — Aggravated Driving
After Revocation Prohibited; Criminal Law — Prosecution of
Multiple Counts for Same Act — Lesser Included Offenses
In this challenge to the sufficiency of evidence to sustain a
conviction for eluding or attempting to elude a police officer under
section 42-4-1413, C.R.S. 2019, a division of this court rejects the
defendant’s argument that “eluding” or “attempting to elude”
requires some sort of evasive action that makes it harder for the
police to follow. Rather, depending on the circumstances, elude
may simply be defined as to avoid, escape, or not be caught. The
division also holds that the defendant’s conviction for eluding or
attempting to elude a police officer should merge into his conviction
for aggravated driving after revocation prohibited.
COLORADO COURT OF APPEALS 2020COA78
Court of Appeals No. 18CA0528
Larimer County District Court No. 14CR1014
Honorable Stephen E. Howard, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Dustin Robert Sims,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE VOGT*
Dunn and Johnson, JJ., concur
Announced May 7, 2020
Philip J. Weiser, Attorney General, Danny Rheiner, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 In 2014, a jury convicted defendant, Dustin Robert Sims, of
eluding or attempting to elude a police officer, aggravated driving
after revocation prohibited (aggravated DARP), and two lesser
offenses. On direct appeal, a division of this court concluded that
police officers had given improper opinion testimony at trial about
whether Sims’s conduct amounted to “eluding,” which was an
ultimate issue to be decided by the jury. The division reversed in
part and remanded for a new trial on the charges of eluding or
attempting to elude and aggravated DARP. See People v. Sims,
(Colo. App. No. 15CA0475, June 15, 2017) (not published pursuant
to C.A.R. 35(e)).
¶2 At the second trial, Sims was again found guilty on those
counts, and he now appeals. Sims first contends that the evidence
was insufficient to sustain his conviction for eluding or attempting
to elude a police officer (without that conviction, his DARP
conviction would not be aggravated). Second, he contends that his
eluding or attempting to elude conviction should have been merged
into his conviction for aggravated DARP.
1
¶3 We disagree with his first contention but agree with the
second. We therefore affirm the judgment in part, vacate it in part,
and remand for further proceedings.
I. Background
¶4 The evidence at the second trial in this case showed the
following.
¶5 Sims was told to leave a rodeo in Estes Park, Colorado, when
he became irate and belligerent following an unfounded allegation
about a theft of a cowboy hat. Sims then drove to a local police
station to lodge a complaint against the police officer who had been
involved in the incident at the rodeo. When the station was initially
unable to provide Sims with a complaint form, he became frustrated
and left. He described his mental state upon leaving the station as
“enraged.”
¶6 Meanwhile, the officer involved in the rodeo incident had been
dispatched to bring a complaint packet to the station for Sims to fill
out. The officer had learned through a records check after the
incident that Sims’s driving status had been revoked as a habitual
traffic offender. When the officer was driving into the station
2
parking lot, he observed Sims backing out of a parking space, and
he saw that one brake light on Sims’s car was out.
¶7 The officer, driving a marked patrol vehicle, tried to initiate a
traffic stop of Sims’s car by activating the vehicle’s emergency
lights. Sims did not pull over but continued driving, within the
speed limit. The officer then sounded his siren, using three
different siren tones, but Sims still did not respond. Another officer
joined the pursuit, also activating his emergency lights and sirens,
and other drivers pulled their cars off to let the officers pass. Sims
kept driving, all the while within the speed limit. After pursuing
Sims for just over three miles, the officers discontinued the pursuit
at the city limits based on the local police department’s policy.
¶8 A sergeant with the county sheriff’s department heard about
the pursuit over dispatch. After the local officers stopped their
pursuit and asked the sheriff’s department for help, the sergeant
began pursuing and eventually caught up to Sims’s car
two-and-a-half miles down the road. He activated his emergency
lights and sounded different sirens, including a very loud air horn.
Sims kept driving, within the speed limit. During the sergeant’s
pursuit, he noticed Sims smoking a cigarette and flicking the ashes
3
out the window. After pursuing Sims’s car for two miles, the
sergeant conducted a precision immobilization technique maneuver,
causing Sims’s car to spin off the road. Sims was arrested at the
scene.
¶9 Sims testified that he was driving with loud music on and with
an earbud in one ear and that he did not hear or see any police cars
behind him.
¶ 10 The jury found Sims guilty on both counts.
II. Sufficiency of the Evidence of Eluding or Attempting to Elude
¶ 11 Sims contends that the evidence was insufficient to sustain
his conviction for eluding or attempting to elude a police officer
because eluding or attempting to elude requires some type of “trick”
or “evasive action” that makes it harder for the police to follow. He
cites the following as possible examples: increasing one’s speed,
turning off one’s headlights, swerving around other cars, or ducking
onto a side road. He argues that “the prosecution has to show that
a person did something more than simply refuse to stop,” and that
because “he just continued to drive normally, and he followed all
applicable traffic regulations while doing so,” the evidence was
insufficient to sustain his conviction. We disagree.
4
A. Standard of Review
¶ 12 When assessing the sufficiency of the evidence supporting a
conviction, we review the record de novo to determine whether the
relevant evidence, viewed as a whole and in the light most favorable
to the prosecution, was sufficient to support the conclusion by a
reasonable juror that the defendant was guilty beyond a reasonable
doubt. Butler v. People, 2019 CO 87, ¶ 20.
¶ 13 We review issues of statutory construction de novo. Garcia v.
People, 2019 CO 64, ¶ 33.
B. Law Criminalizing Eluding or Attempting to Elude
¶ 14 The General Assembly has defined the crime of eluding or
attempting to elude a police officer as follows:
Any operator of a motor vehicle who the officer
has reasonable grounds to believe has violated
a state law or municipal ordinance, who has
received a visual or audible signal such as a
red light or a siren from a police officer driving
a marked vehicle showing the same to be an
official police, sheriff, or Colorado state patrol
car directing the operator to bring the
operator’s vehicle to a stop, and who willfully
increases his or her speed or extinguishes his or
her lights in an attempt to elude such police
officer, or willfully attempts in any other
manner to elude the police officer, or does elude
such police officer commits [the] class 2
5
misdemeanor traffic offense [of eluding or
attempting to elude a police officer].
§ 42-4-1413, C.R.S. 2019 (emphasis added).
¶ 15 The evidence required to establish eluding or attempting to
elude under section 42-4-1413 has been addressed in two
published Colorado cases, neither of which involves the same
circumstances as those presented here.
¶ 16 In People v. Espinoza, 195 P.3d 1122, 1125 (Colo. App. 2008),
after a police officer activated his emergency lights and siren to
conduct a traffic stop of the defendant’s car, the defendant drove
slowly for four blocks and then fled on foot. In concluding that the
evidence of eluding or attempting to elude was sufficient, the
division relied primarily on the defendant’s attempted flight on foot.
See id. at 1128-29.
¶ 17 In People v. Procasky, 2019 COA 181, ¶¶ 3-5, 18-25, after
officers activated their lights and sirens to conduct a traffic stop of
the defendant’s car, the defendant drove for two blocks, pulled into
a parking lot, stopped his car, and followed the officers’ directions
thereafter. Finding Espinoza distinguishable because that case
focused on the defendant’s flight on foot, the Procasky division
6
concluded that the evidence of eluding or attempting to elude was
insufficient. See id. at ¶¶ 18-25.
C. What Does “Elude” Mean?
¶ 18 The word “elude” is not defined in the relevant statutory
scheme, nor is it defined in the Colorado Model Criminal Jury
Instructions. The jury in this case was not provided with a
definition for the word.
1. Dictionary Definitions
¶ 19 When jury instructions do not provide a definition for a
particular term, the jury is presumed to apply the common meaning
or meanings of the term. People v. Walden, 224 P.3d 369, 379
(Colo. App. 2009). Although jurors are of course not permitted to
consult a dictionary for such information, see People v. Holt, 266
P.3d 442, 446-47 (Colo. App. 2011) (juror improperly brought a
dictionary definition of “elude” or “eluding” into jury room), we may
do so to determine how a reasonable juror might construe the
meaning of a term, see Cowen v. People, 2018 CO 96, ¶ 14 (“When
determining the plain and ordinary meaning of words, we may
consider a definition in a recognized dictionary.”).
7
¶ 20 In this case, however, dictionary definitions do not provide a
definitive answer. On the one hand, some definitions support
Sims’s contention that eluding requires proof that the defendant
took some kind of evasive action. Both Webster’s Ninth New
Collegiate Dictionary 405 (1990) and the online Merriam-Webster
Dictionary, https://perma.cc/GP67-7ZYZ, define “elude” as “to
avoid adroitly.” The term “adroitly,” in turn, is defined as using
“skill, cleverness, or resourcefulness.” Merriam-Webster Dictionary,
https://perma.cc/5UQF-9GB7. See also The American Heritage
Dictionary of the English Language 582 (4th ed. 2000) (defining
“elude” as “to evade or escape from, as by daring, cleverness, or
skill”).
¶ 21 On the other hand, some definitions of elude do not require
evasive action. See Cambridge Dictionary, https://perma.cc/47AL-
5DNH (defining “elude” as simply “to not be caught by someone”);
see also Collins English Dictionary, https://perma.cc/XJ6A-YJL4
(“If you elude someone or something, you avoid them or escape from
them.”); Macmillan Dictionary, https://perma.cc/N3AF-YE49
(defining elude as “to manage to escape or hide from someone or
something”).
8
¶ 22 Relying on dictionary definitions, then, does not show that a
reasonable juror would necessarily think that some kind of evasive
action is required before “eluding or attempting to elude” can be
found.
2. The Principle of Ejusdem Generis
¶ 23 Nor do we agree with Sims that such evasive action is required
if we construe the relevant statute according to the principle of
ejusdem generis. Under that principle of statutory construction,
“when a general word or phrase [in a statute] follows a list of
specific persons or things, the general word or phrase will be
interpreted to include only persons or things of the same type as
those listed.” Davidson v. Sandstrom, 83 P.3d 648, 656 (Colo. 2004)
(quoting Black’s Law Dictionary 535 (7th ed. 1999)).
¶ 24 Applying that principle to section 42-4-1413, Sims argues,
means that because the statute’s specific examples of attempting to
elude — increasing one’s speed and extinguishing one’s lights —
involve tricks or evasive actions, the general clause that follows —
“attempts in any other manner to elude” — must be interpreted to
include only tricks or evasive actions. We disagree.
9
¶ 25 As the division in Espinoza explained, the “phrase ‘in any
other manner’ [in the last clause of section 42-4-1413] is broad and
clarifies that an operator violates the statute regardless of how the
operator attempts to elude the police.” 195 P.3d at 1129; see also,
e.g., Gooch v. United States, 297 U.S. 124, 128 (1936) (relying in
part on statute’s use of the broad term “otherwise” in declining to
apply ejusdem generis principle to construction of federal
kidnapping statute).
¶ 26 Applying ejusdem generis here would, instead, narrow the
construction of the phrase “in any other manner,” and would
narrow the reach of section 42-4-1413. When we consider that
statute as part of the broader statutory scheme addressing similar
behavior, we discern nothing to suggest that the General Assembly
intended such a narrow construction. See S.A.S. v. Dist. Court, 623
P.2d 58, 62 n.5 (Colo. 1981) (The principle of ejusdem generis
“should not be applied in a manner that hinders the attainment of
the objectives contemplated by the statutory scheme.”).
¶ 27 A different statute, section 18-9-116.5, C.R.S. 2019, addresses
“vehicular eluding,” which is a felony. Conviction of that felony
requires proof that the driver “operate[d] his or her vehicle in a
10
reckless manner.” § 18-9-116.5(1). Section 18-9-116.5 thus would
not apply in a situation where, as here, the driver was not driving
recklessly.
¶ 28 Another statute, section 42-4-705(1), C.R.S. 2019, addresses
failing to yield the right-of-way to an emergency vehicle:
Upon the immediate approach of an authorized
emergency vehicle making use of audible or
visual signals . . ., the driver of every other
vehicle shall yield the right-of-way and where
possible shall immediately clear the farthest
left-hand lane lawfully available to through
traffic and shall drive to a position parallel to,
and as close as possible to, the right-hand
edge or curb of a roadway clear of any
intersection and shall stop and remain in that
position until the authorized emergency vehicle
has passed, except when otherwise directed by
a police officer.
(Emphasis added.) A person who violates this statute commits a
class A traffic infraction, § 42-4-705(3)(a), and must pay a penalty
of between $15 and $100, § 42-4-1701(3)(a)(I), C.R.S. 2019.
¶ 29 Although Sims was in fact found guilty at his first trial of
violating section 42-4-705(1) as a lesser nonincluded offense related
to the eluding charge, it does not follow that this statute was
intended to afford the only remedy available for the type of conduct
at issue in this case. By its plain language, section 42-4-705(1) is
11
intended to address drivers who fail to yield the right of way so that
emergency vehicles can pass easily to get to an emergency, not
drivers who themselves are being pursued by police officers.
¶ 30 Considering the related statutes, sections 42‑4‑705(1)
and 18-9-116.5, leads us to agree with the Espinoza division that
the clause in section 42‑4‑1413, “attempts in any other manner to
elude,” must be construed broadly. Otherwise, someone who
required police to pursue him for miles, albeit without driving
recklessly, would be guilty only of failing to yield the right-of-way to
an emergency vehicle — a result which we view as inconsistent with
the legislative intent evidenced in the statutory scheme described
above.
¶ 31 We also note that courts in other jurisdictions have, under
different statutory schemes, recognized that driving some distance
to avoid being pulled over can amount to eluding police even if no
traffic laws are being broken. See State v. Donkers, 867 N.E.2d
903, 925 (Ohio Ct. App. 2007) (Even where elude is construed to
mean “slyly avoid[] with artifice, stratagem, or dexterity,” “one could
come up with various theories to support appellant’s intent to
elude. For instance, one could believe that she was trying to leave
12
the jurisdiction and was hoping the trooper could not follow.”); see
also People v. Sanchez, 103 Cal. Rptr. 2d 809, 814 (Ct. App. 2001)
(“[A]s can be attested to by those who watched the ludicrous pursuit
of Orenthal James Simpson in his white Bronco, a driver can flee or
otherwise attempt to elude pursuing officers in a manner that does
not pose a high probability of death to anyone.”); State v. James,
237 P.3d 672, 679-80 (Mont. 2010) (Rice, J., concurring in part and
dissenting in part) (“O.J.’s quixotic quest had not been done
recklessly and had not endangered but, nonetheless, he had
exhibited the criminal objective of eluding police.”).
3. The Meaning of Elude
¶ 32 In sum, we do not agree with Sims that “elude” must
invariably include some kind of trick or evasive action. Rather,
depending on the circumstances, elude may simply be defined as
“avoid,” “escape,” or “to not be caught.” This does not mean that
any time a person does not immediately stop when a police car
directs him or her to do so, the person is guilty of violating section
42-4-1413. The statute also requires that the driver be found to
have acted “willfully.” Where, for example, a driver continues
driving for miles without pulling over, despite being pursued by
13
police with activated lights and sirens, a reasonable jury could
conclude that he or she was willfully attempting to elude the police
officer. Conversely, as in Procasky, pulling over after a short
distance and then cooperating with police could be insufficient to
establish a violation of section 42-2-1413.
¶ 33 Finally, we do not agree with Sims that a construction that
permits the jury to consider factors such as the length of time or
distance driven renders the statute unconstitutionally vague.
Contending that we must designate a specific distance to avoid
vagueness, Sims asks: “If driving for two blocks is not enough, then
what is?” In our view, it is not necessary to decide, as a matter of
law, how far a driver can drive before violating the statute. Each
case will involve differing facts, and we are confident that
reasonable jurors will be able to decide, based on all the evidence,
whether the prosecution has shown beyond a reasonable doubt that
the defendant’s conduct amounted to willfully eluding or attempting
to elude a police officer.
D. Application
¶ 34 The jury in the second trial heard evidence that the first
pursuing officer knew that Sims’s driver’s license had been revoked,
14
and Sims also was aware of that fact; the officers, and the sergeant
with the county sheriff’s department, pursued Sims in marked
vehicles, sounded sirens, and activated their emergency lights; Sims
had his car window open at least long enough to flick a cigarette;
and Sims drove over three miles, leaving the police officers’
jurisdiction, and then continued driving for some two miles after the
sergeant caught up with him.
¶ 35 This evidence, considered under the standards set forth above,
was sufficient to support a conclusion by a reasonable juror that
Sims was guilty beyond a reasonable doubt of willfully eluding or
attempting to elude a police officer under section 42-4-1413. The
fact that he did not violate any traffic laws while driving does not
require a contrary conclusion.
III. Double Jeopardy and Merger
¶ 36 Sims also contends that his conviction for eluding or
attempting to elude a police officer is a lesser included offense, and
therefore should merge into his conviction for aggravated DARP.
We agree.
¶ 37 Whether convictions for different offenses merge is a question
of law that we review de novo. Page v. People, 2017 CO 88, ¶ 6.
15
Because Sims did not request this relief in the trial court, we review
for plain error. See Reyna-Abarca v. People, 2017 CO 15, ¶¶ 34-47.
However, in this context, “when a defendant’s double jeopardy
rights are violated for failure to merge a lesser included offense into
a greater offense, such a violation requires a remedy.” Friend v.
People, 2018 CO 90, ¶ 45 (quoting Reyna-Abarca, ¶ 81).
¶ 38 When a defendant’s conduct establishes the commission of
more than one offense, the defendant may be prosecuted for each
such offense, but he or she may not be convicted of more than one
offense if “[o]ne offense is included in the other,” that is, if the lesser
offense “is established by proof of the same or less than all the facts
required to establish” the greater offense. § 18-1-408(1)(a), (5)(a),
C.R.S. 2019. In other words, “an offense is a lesser included
offense of another offense if the elements of the lesser offense are a
subset of the elements of the greater offense, such that the lesser
offense contains only elements that are also included in the
elements of the greater offense.” Friend, ¶ 34 (quoting
Reyna-Abarca, ¶ 64).
¶ 39 The aggravated DARP statute, section 42-2-206(1)(b)(I), C.R.S.
2019, states:
16
A person commits the crime of aggravated
[DARP] if he or she is found to be an habitual
offender and thereafter operates a motor
vehicle in this state while the revocation of the
department prohibiting such operation is in
effect and, as a part of the same criminal
episode, also commits any of the following
offenses:
....
(C) Reckless driving . . .;
(D) Eluding or attempting to elude a police
officer . . .;
. . .; or
(F) Vehicular eluding . . . .
(Emphasis added.)
¶ 40 The italicized clause above — “and, as a part of the same
criminal episode, also commits any of the following offenses” —
means that the offenses listed in the subsections under section
42-2-206(1)(b), including eluding or attempting to elude under
subsection (D), are lesser included offenses of aggravated DARP.
See Espinoza, 195 P.3d at 1130 (“Defendant contends, the People
concede, and we agree, that [defendant’s] conviction for eluding
must be vacated because it merges with his conviction for
aggravated DARP.”); see also People v. Dutton, 2014 COA 51,
17
¶¶ 27-36 (concluding that reckless driving under subsection (C) and
vehicular eluding under subsection (F) are lesser included offenses
of aggravated DARP, but merging only the reckless driving
conviction into the aggravated DARP conviction in order to uphold
as many sentences as legally possible); cf. Zubiate v. People, 2017
CO 17, ¶¶ 17-21 (under the strict elements test, driving under
restraint — which is not listed in any subsection under section
42-2-206(1)(b) — is not a lesser included offense of aggravated
DARP), disapproved of by People v. Rock, 2017 CO 84, ¶ 16 n.4.
¶ 41 Consistent with the legal principles set forth above, the jury
instruction on aggravated DARP in Sims’s case set forth the
elements the jury was required to find, including that, “(7) as part of
the same criminal episode, [Sims] committed the following crime:
Eluding or Attempting to Elude a Police Officer.” However, as
noted, although the jury convicted Sims of aggravated DARP and
eluding or attempting to elude a police officer, the two offenses were
not merged at sentencing.
¶ 42 Citing People v. Dominguez, 2019 COA 78, ¶ 63, the People
argue that merger is not required because Sims committed two
separate and temporally distinct instances of eluding or attempting
18
to elude: one in attempting to elude the local police officers, the
other in attempting to elude the sergeant during the last two miles
of the pursuit. We are not persuaded.
¶ 43 In Dominguez, a division of this court recognized that multiple
convictions for two separate offenses, the elements of one of which
constitute a subset of the elements of the other, can stand if the
offenses were committed by distinctly different conduct. Id. The
Dominguez division held that the defendant’s reckless driving and
vehicular eluding convictions did not merge where the evidence
presented supported two factually and temporally distinct instances
of reckless driving. Id. at ¶¶ 66-71; see also People v. McMinn, 2013
COA 94, ¶¶ 8, 31-35 (prosecution charged defendant with, and tried
him on, four counts of vehicular eluding, one for each pursuing
officer; merger was not required where each act was “a new
volitional departure” in the defendant’s course of conduct, not
merely a single, continuous, uninterrupted act of eluding).
¶ 44 In contrast to Dominguez and McMinn, the prosecution
charged Sims with a single count of eluding or attempting to elude
and, in that charge, presented evidence of Sims’s single, continuing,
and uninterrupted act of eluding or attempting to elude. The same
19
is true for the aggravated DARP charge — the prosecution did not
specify any particular act of eluding or attempting to elude
underlying that charge. Consistent with the charges, during closing
argument at trial, the prosecutor argued to the jury that Sims had
committed one continuous act of eluding:
7.8 miles. That was the distance that Mr.
Sims eluded police. . . . [O]ne could debate,
what is that distance at which failure to yield
becomes eluding. I don’t know if that distance
is 100 feet or half a mile, or maybe even a mile.
But I’m asking you to determine that it
certainly is 7.8 miles, that when you fail to
stop for police for 7.8 miles, the only
reasonable conclusion is that you’re
attempting to elude police. And that’s what
happened here.
The prosecutor then addressed the aggravated DARP charge, saying
to the jury, “if you consider or deliberate over the eluding count and
you make the determination that he did not elude police, you
cannot find that he committed aggravated driving while revoked as
[a] habitual traffic offender.”
¶ 45 Under these circumstances, we are unpersuaded by the
People’s arguments on this issue. See Friend, ¶ 23 (“[T]he
information did not allege specific facts supporting each of these
individual counts. Moreover, although before us the People have
20
attempted to assign specific facts to particular counts, the
prosecution did not try the case that way.”); People v. Abiodun, 111
P.3d 462, 471 (Colo. 2005) (To charge multiple counts of the same
offense, the prosecution must charge them “with sufficient
specificity to distinguish” them.).
¶ 46 Eluding or attempting to elude a police officer is a lesser
included offense of aggravated DARP, and the fact that Sims has
convictions for both offenses “requires a remedy.” See Friend, ¶ 45
(quoting Reyna-Abarca, ¶ 81).
IV. Conclusion
¶ 47 Sims’s conviction for aggravated DARP is affirmed. Sims’s
conviction for eluding or attempting to elude a police officer is
vacated. We remand for the trial court to merge Sims’s conviction
for eluding or attempting to elude a police officer into his conviction
for aggravated DARP.
JUDGE DUNN and JUDGE JOHNSON concur.
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